Lawyers for the families of the 346 people killed in the Boeing 737 MAX crashes want the Justice Department to criminally prosecute both Boeing and high ranking executives.

In pursuit of that goal, the lawyers secured an important victory last month when Judge Reed O’Connor ruled that the families “have standing to assert rights as the representatives of ‘crime victims’ under the Crime Victims Rights Act (CVRA).”

Federal Judge Reed O’Connor found that “the tragic loss of life that resulted from the two airplane crashes was a reasonably foreseeable consequence of Boeing’s conspiracy to defraud the United States.” 

“Having demonstrated direct and proximate cause, the movants have shown they are proper representatives of ‘crime victims’ for purposes of the CVRA and are therefore entitled to assert rights under the Act,” the judge ruled.

Paul G. Cassell, the lawyer for the families and a former federal judge who is currently a professor of law at the University of Utah, called the ruling “a tremendous victory for the families of the 346 people who died in the Boeing 737 MAX crashes, as well as the crime victims’ rights movement.” 

“The Department of Justice clearly violated the Crime Victims’ Rights Act by secretly negotiating an agreement that granted Boeing immunity from criminal prosecution,” Cassell told Corporate Crime Reporter. “Justice for the victims who lost their lives and their families due to Boeing’s greed has been delayed long enough. This decision sets the stage for a pivotal hearing, where we will present proposed remedies that will allow criminal prosecution to hold Boeing fully accountable.”

The Justice Department and Boeing so far have argued that there is no remedy for the families.

But the families want to reopen the case and persuade the Justice Department to criminally prosecute both Boeing and Boeing’s top executives responsible for the deaths of their loved ones.

Trial lawyers rarely call for criminal prosecution of companies they are suing.

But last month, two trial lawyers representing Boeing victims in the civil tort law cases – Shanin Specter and Robert Clifford – posted an article on the Stanford Law School website titled It’s Time for a Criminal Prosecution of Boeing’s CEOs. 

The Boeing case “represents an unusual instance where civil justice is insufficient,” Specter and Clifford wrote. “More needs to be done to adequately address the breadth and depth of the wrongs involved. At issue are the actions of Boeing and its CEOs. Their behavior reveals a deliberate pattern of covering up a dangerously flawed aircraft design, particularly after the first 737 MAX 8 crash on October 29, 2018 that killed all 189 persons on board.”

“The Securities and Exchange Commission (SEC) has imposed $201 million in fines against Boeing and its CEO for misleading investors about the safety of the planes involved,” they wrote. “However, there is still a need for criminal investigations into Boeing CEOs Dennis Muilenburg and David Calhoun.”

Specter appeared at Tort Law Day last month, sponsored by Ralph Nader’s Tort Law Musuem in Winsted, Connecticut.

Specter was asked who would conduct the criminal investigation and prosecution. He said — any of the states where the seven American victims lived or the Justice Department or both.

The problem for the families seeking justice against Boeing and its executives is that the Justice Department closed the case with its January 2021 deferred prosecution agreement with Boeing – effectively granting the company immunity from further federal prosecution.

But now that Judge O’Connor has ruled that the Department violated the Crime Victims’ Rights Act by not conferring with the families before the deal was cut, the question becomes – what’s the remedy?

“As we understand the government and Boeing’s position, it’s essentially that the judge is powerless to do anything about this violation of law,” Cassell said. “They’ve said in their earlier briefings that the judge cannot award any remedy for these violations.” 

“And we take what we think is the very commonsensical position that where there’s been a violation of law, a federal district court judge has the power to enforce that federal law and award appropriate remedies for that violation of law.” 

“The most obvious remedy that’s available here is to protect the victims right to confer with prosecutors by removing from the deferred prosecution agreement the immunity provisions in it, that is the provision that blocked Boeing’s criminal prosecution. If those provisions were removed, then the victims would be able to confer with the Justice Department about prosecuting Boeing. And that’s one of the remedies that we will be seeking. And we are hopeful Judge O’Connor will grant that remedy.”

The Justice Department right now can confer with the victims. Is the Justice Department conferring with the victims right now?

“Right now, we cannot confer with the Justice Department about criminally prosecuting Boeing lying to the FAA. And the reason we can’t do that is because the deferred prosecution agreement says the government has promised Boeing that it won’t ever prosecute Boeing for those crimes except in rare circumstances.” 

“It’s that provision in the deferred prosecution agreement that is preventing families from conferring with the Justice Department in a meaningful way about criminal prosecution. We will be having a meet and confer session with the Justice Department later this week to talk about steps going forward in the case. But there is no way for us to confer right now about criminally prosecuting Boeing, because the deferred prosecution agreement blocks any such prosecution.”

Why not a remedy that would allow the families to meet with prosecutors and make the argument that the deferred prosecution agreement should be rescinded?

“What you’ve just described is essentially our position although there’s an important sequencing that needs to be done with that remedy.” 

“The immunity provision needs to be removed from the deferred prosecution agreement because otherwise conferral with the Justice Department is meaningless. Once those provisions are removed, then we get to confer with the Justice Department. And we believe that the families will be persuasive and effective in making the case that Boeing should be criminally prosecuted.”

If the criminal prosecution is re-opened, will you be asking the Justice Department to criminally prosecute both Boeing and its executives?

“Yes, we will be asking the government to prosecute both Boeing and then leadership who were involved in the false statements and ultimately the crashes.”

Is this a case of first impression? Or have other agreements like this been overturned and criminal prosecutions re-opened?

“The best precedent is the Jeffrey Epstein case that I litigated along with my co-counsel Brad Edwards. In the case, Judge Marra ruled that a permissible remedy under the Crime Victims’ Rights Act was to remove provisions under an agreement blocking prosecution of Jeffrey Epstein in that case and then allowing the woman who had been abused by Epstein to confer with the government about prosecuting Epstein. Judge Marra ruled that was a permissible remedy. He ruled that the government had violated the CVRA by keeping the agreement secret from Epstein’s victims. But unfortunately, shortly after those rulings, Epstein committed suicide. And the Judge ruled that the suicide mooted our efforts to have Epstein criminally prosecuted.”

“But that case in Florida is a clear precedent that removing immunity provisions from a federal agreement – in that case a federal non-prosecution agreement – is a permissible remedy under the CVRA.” 

Judge Reed O’Connor is considered a conservative justice. But this is also a corporate crime case. Most people who are strong on cracking down on corporate crime tend to come from the other side of the political spectrum.

“We don’t view this as a political case. We see this as a case about justice. The only questions are whether the Crime Victims’ Rights Act has been violated and if so what are the remedies.”

“We have had support from a number of people across the political spectrum. Perhaps most interesting is that Senator Ted Cruz filed a friend of the court brief in front of Judge O’Connor in May supporting the families, arguing that the families were victims under the CVRA and urging Judge O’Connor to carefully scrutinize the deferred prosecution agreement.”

The Justice Department and Boeing’s brief on the matter of remedies is due on November 11. Cassell then has a deadline of November 18 to present a reply brief.

Will there be a hearing on remedies before Judge O’Connor?

“That’s up to the judge as to whether he wants to handle things off the briefs or hold a hearing,” Cassell said.

[For the complete q/a format Interview with Paul Cassell, see 34 Corporate Crime Reporter 43(13), Monday November 7, 2022, print edition only.]